ICC Experts Debate

Pound 100 has fewer than 75 seats in it, but that didn’t stop a crowd from packing the room last Friday to see a debate on the role of the International Criminal Court (ICC) in international justice. 150 spectators filled the seats, lined the walls, and squeezed into spots on the floor to watch Ken Roth, Executive Director of Human Rights Watch, take on Pierre-Richard Prosper, U.S. Ambassador-at-Large for War Crimes, in a lively and fact-filled discussion that touched on U.S. isolationism, European hypocrisy, and the best way to bring brutal dictators to justice.

Professor Ryan Goodman moderated the debate, which began with introductory remarks by Professor Jack Goldsmith on the history of the ICC and the justifications that the U.S. has provided for refusing to join the treaty that governs the court. With that, the participants were off and running, with the passionate Roth explaining the need for the U.S. to be a part of the Court and hold itself to international standards.

Prosper was friendly and at ease with an audience that seemed largely hostile to his position. He outlined some of the Bush administration’s key concerns with the Court, including the overly broad power of the prosecutor and the potential for dangerous politicization in investigations. “We aren’t against international tribunals,” reassured Prosper, who was a prosecutor at the International Criminal Tribunal for Rwanda. “We just don’t like the ICC. The debate is not on the principle. The debate is not on the pursuit. The debate is on the mechanism.”

Some of the most interesting disagreements focused on the role of national courts in prosecuting war criminals. Prosper maintained that regional ad hoc tribunals were the best way to get adequate justice for victims, as well as to support the development of strong national court systems. “For justice to be real, for it to mean something,” said Prosper, “the people need to be able to feel it, smell it, taste it, and own it. And if they do, they’ll accept the outcome; it’s their justice and they’re a part of it. The rule of law begins to grow in the society.” Prosper reeled off an impressive list of regional tribunals the United States has helped administer, most recently in East Timor.

Roth maintained that this approach provided no backup plan for corrupt or incompetent regional courts. “If we trusted national courts, we would have let Saddam Hussein investigate himself for the Anfal genocide against the Kurds,” he argued, “The preference is for national prosecutions. But they don’t always work. You need an international backstop. The only option for having a meaningful backstop is for the international judges to get involved.”

The two men clashed over the issue of training national judges to run their own meaningful prosecutions. Prosper called the ICC an “abdication of responsibility to do the heavy lifting required to help these countries get their legal standards up to snuff,” arguing that the international community could do all the work for countries-and the countries could avoid tough political choices-by referring everything to the ICC. Roth maintained that such training could not happen when it was the countries’ leaders themselves who deserved prosecution. As he put it, “you can’t train the Sudanese government to prosecute itself.”

Roth also suggested that one reason the U.S. is such a supporter of ad hoc tribunals is because that system is unlikely to ever prosecute U.S citizens. “The U.S. likes international justice so long as it’s focused on other people,” he said, “and that’s not good enough.” In response, Prosper pointed out similar acts of self-interest by European countries, such as France joining the ICC under the condition that it be exempt from prosecution for seven years. He also accused Europe of hypocrisy and political cowardice in giving lip service to international cooperation, but refusing to help the U.S. in the extradition of former Liberian dictator Charles Taylor to face prosecution. Prosper suggested that Europeans would change their tune once one of their own faced charges at the Court: “Let’s see how aggressive they are in supporting the ICC then.”

The debate couldn’t have come at a more important time. Last week, the Court issued its first-ever arrest warrants, for leaders of Uganda’s brutal rebel group. In the coming months, Prosper, Roth, and the HLS community will get a chance to see which expert’s hopes and fears for the Court are the most accurate, and how the Court evolves to address the most serious issues in international justice.